Rey v. Fayette R. Plumb, Inc.

• Decision Date: 21 September 1926
• Docket Number: No. 19322.,19322.
• Parties: REY v. FAYETTE R. PLUMB, INC.
• Court: Missouri Court of Appeals

287 S.W. 783

REY v. FAYETTE R. PLUMB, INC.

No. 19322.

St. Louis Court of Appeals. Missouri.

September 21, 1926.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by Alma M. Rey, a minor, by Helena Rey, her next friend, against Fayette R. Plumb, Inc. Judgment for plaintiff, and from an order granting defendant's motion for a new trial, plaintiff appeals. Affirmed, and cause remanded.

W. B. & Ford, W. Thompson and Bert W. Newton, all of St. Louis, for appellant.

Holland, Rutledge & Lashly and A. V. Lashly, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for injuries sustained to the index finger of plaintiff's left hand when caught between an axe which she was polishing and a wooden post located in defendant's plant. The verdict of the jury was for plaintiff in the sum of $3,000, and judgment was duly rendered thereon. Defendant's motion for a new trial was, however, sustained by the court, from which order plaintiff has appealed.

The charge of negligence in Plaintiff's amended petition was as follows:

"That defendant negligently and carelessly ordered, directed, and caused plaintiff to work at a rate of speed which was too fast and not reasonably safe, when defendant knew, or by the exercise of ordinary care would have known, that by reason thereof her hand was likely to come in contact with said post and be injured, and that the defendant negligently and carelessly ordered, directed, and required plaintiff to work in a position near said post, by reason whereof, said post was between her and said moving belt, and in such a position that plaintiff, while working at a rapid rate of speed, was likely to come in contact therewith, and that the defendant negligently and carelessly caused and permitted said post to be and remain in said position, and negligently failed and omitted to remove the same, when the defendant knew, or by the exercise of ordinary care would have known, that by reason of the facts hereinbefore alleged plaintiff was likely to come in contact with said post and be injured."

The amended answer was a general denial, coupled with a plea of contributory negligence.

The reply was conventional.

The evidence, viewed in the light most favorable to plaintiff, disclosed that on October 9, 1922, plaintiff, a girl 16 years of age, entered the employ of defendant, a corporation engaged in the business of manufacturing axes, hammers, and hatchets, and was assigned to the task of cleaning and polishing axe heads under the supervision of a forelady, Mrs. Bessie Taylor. At such times as she was not engaged at this work, plaintiff sandpapered handles and constructed boxes upon a machine designed for such purpose.

Plaintiff was injured on October 19, 1922, while standing at the left end of a slowly moving conveyor belt, which revolved from left to right, and upon which she was engaged in placing axe heads to be carried to other employees. Among these was Mrs. Taylor, who was working at the time at a position 10 or 12 feet to the right of the point where plaintiff was stationed. This belt was 12 to 14 inches wide and approximately 24 feet long, and extended above the floor to the height of plaintiff's waist. It was constructed upon a framework with a pulley at each end around which the belt revolved. There was a wooden post about 4 inches square which stood upon the side of the belt where plaintiff was working and was between her and the belt. This post was a part of the frame work supporting the belt. It was located about 4 inches from the side of the belt and about 3 or 4 inches from the pulley at plaintiff's left, and extended 3 or 4 inches above the belt's surface.

Plaintiff's duty was to polish the axe heads and lay them on the belt, whence they were carried to the other employees, by whom they were labeled and wrapped. About 30 boxes, each containing 24 axe heads, were supplied plaintiff at a time, and were placed directly behind her. She picked up each axe head in her right hand, polished it by means of a cloth which she held in her left hand, and then transferred it to the left hand to be placed upon the belt. In so doing she held her index finger over the edge of the axe head for the dual purpose of balancing it and of avoiding finger prints on the metal. Plaintiff had been doing this kind of work for a few hours each day over a period of 4 or 5 days prior to that on which her injury was received. No instructions were given her by Mrs. Taylor as to the manner in which she should do her work. At the time she was injured, however, plaintiff was handling the axe heads in the same manner as she had throughout the 4 or 5 days during which she had been engaged at this particular task.

Upon this particular day there was an unusually large number of axe heads to be polished. Plaintiff had exhausted her original supply of boxes, and had been given an additional supply, only 8 boxes of which were remaining at the time her injury was received. Shortly after the noon hour Mrs. Taylor requested that she do her work at a more rapid rate, and, accordingly, thereafter she polished the axe heads at such a speed that she was able to lay them upon the belt at a distance of only 8 or 10 inches apart. In so doing, as she attempted to...